Workers' Religious Freedom vs. Patients' Rights
Proposal Would Deny Federal Money if Employees Must Provide Care to Which They Object

By Rob Stein
Washington Post Staff Writer
Thursday, July 31, 2008

A Bush administration proposal aimed at protecting health-care workers who object to abortion, and to birth-control methods they consider tantamount to abortion, has escalated a bitter debate over the balance between religious freedom and patients' rights.

The Department of Health and Human Services is reviewing a draft regulation that would deny federal funding to any hospital, clinic, health plan or other entity that does not accommodate employees who want to opt out of participating in care that runs counter to their personal convictions, including providing birth-control pills, IUDs and the Plan B emergency contraceptive.

Conservative groups, abortion opponents and some members of Congress are welcoming the initiative as necessary to safeguard doctors, nurses and other health workers who, they say, are increasingly facing discrimination because of their beliefs or are being coerced into delivering services they find repugnant.

But the draft proposal has sparked intense criticism by family planning advocates, women's health activists, and members of Congress who say the regulation would create overwhelming obstacles for women seeking abortions and birth control.

There is also deep concern that the rule could have far-reaching, but less obvious, implications. Because of its wide scope and because it would -- apparently for the first time -- define abortion in a federal regulation as anything that affects a fertilized egg, the regulation could raise questions about a broad spectrum of scientific research and care, critics say.

"The breadth of this is potentially immense," said Robyn S. Shapiro, a bioethicist and lawyer at the Medical College of Wisconsin. "Is this going to result in a kind of blessed censorship of a whole host of areas of medical care and research?"

Critics charge that the proposal is the latest example of the administration politicizing science to advance ideological goals.

"They are manipulating the system by manipulating the definition of the word 'abortion,' " said Susan F. Wood, a professor at George Washington University who resigned from the Food and Drug Administration over the delays in approving the nonprescription sale of Plan B. "It's another example of this administration's disregard for science and medicine in how agencies make decisions."

The proposal is outlined in a 39-page draft regulation that has been circulated among several HHS agencies. The FDA has not objected, but several officials at the National Institutes of Health said that the agency had expressed serious concerns.

"This is causing a lot of distress," said one NIH researcher who spoke on the condition of anonymity to describe internal discussions. "It's a redefinition of abortion that does not match any of the current medical definitions. It's ideologically based and not based on science and could interfere with the development of many new therapies to treat diseases."

Since a copy of the document leaked earlier this month, outside advocates and scientists have voiced growing alarm that the regulation could inhibit research in areas including stem cells, infertility and even such unrelated fields as cancer.

Dozens of members of Congress have sent letters of protest to HHS Secretary Mike Leavitt, as have scores of major medical and health groups that say their supporters have sent Congress, the White House and HHS thousands of letters protesting the proposal.

HHS officials declined to discuss the draft, saying it is in the very early stages of review. But HHS issued a statement that reads in part:

"Over the past three decades, Congress has passed several anti-discrimination laws to protect institutional and individual health care providers participating in federal programs. HHS has an obligation to enforce these laws, and is exploring a number of options."

The draft states that numerous cases have been reported of health-care workers being "required to violate their consciences by providing or assisting in the provision of controversial medicine or procedures." It adds that many states have recently passed laws requiring health plans to pay for contraception, pharmacists to fill prescriptions for birth control, and hospitals to offer Plan B to women who have been raped.

"In general, the Department is concerned that the development of an environment in the health care industry that is intolerant of certain religious beliefs, ethnic and cultural traditions, and moral convictions may discourage individuals from underrepresented and diverse backgrounds from entering health care professions," the document states.

The regulation would require any entity receiving HHS funding to certify that it does not discriminate against organizations or individuals who do not want to provide services they consider objectionable.

The most controversial section defines abortion as "any of the various procedures -- including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action -- that results in the termination of life of a human being in utero between conception and natural birth, whether before or after implantation."

That definition would include most forms of hormonal birth control and the IUD, which most major medical groups believe do not constitute abortion because they primarily affect ovulation or fertilization and not an embryo once it has implanted in the womb.

The regulation would apply to anyone who participates in "any activity with a logical connection to a procedure, health service or health service program, or research activity. . . . This includes referral, training and other arrangements of the procedure, health service, or research activity."

If the administration decides to adopt the regulation, it would undergo public comment and further review before becoming final.

Critics argue that the broad definitions of abortion and the types of workers who could object would cover everyone from the top doctor at a hospital to the janitor.

Cecile Richards of the Planned Parenthood Federation of America said, "At a time when access to health care is at an all-time low, the idea that the Bush administration would be creating more barriers is frankly incredible."

The regulation could trump dozens of state laws that require health plans to cover birth control, pharmacists to fill prescriptions for contraceptives, and hospitals to offer emergency contraception to women who have been raped, critics said.

"You could imagine a group of people with less than honorable intentions seeking to get hired at a family planning clinic with the specific objective of obstructing access. Under this regulation, there is little you could do about it," said Jill Morrison of the National Women's Law Center.

Others said the rule could have additional implications, including justifying discrimination against gays, single women or others seeking health care.

"As soon as you have a definition in one part of federal law, it can become the inspiration for the reinterpretation of other statutes," said R. Alta Charo, a lawyer and bioethicist at the University of Wisconsin at Madison.

Supporters dismissed such predictions.

"This would essentially simply require people to comply with laws that they have been required to comply with for decades," said M. Casey Mattox of the Christian Legal Society's Center for Law and Religious Freedom. "That does not mean any organization or state can't keep doing exactly what it's been doing. It means they have to make room for people who have sincere moral or ethical concerns about doing something."

Conservative groups including the U.S. Conference of Catholic Bishops, Concerned Women for America and the Catholic Medical Association said the regulation is needed.

David Christensen of the Family Research Council said: "Health-care professionals should not be forced to engage in an action that they see is the taking of a human life. Federal funds shouldn't be used for that kind of pressure."

Christensen and others said the regulations spell out legitimate differing views about what constitutes abortion and when life begins.

Richard S. Myers, a law professor at Ave Maria School of Law in Ann Arbor, Mich., said: "Religious freedom is an important part of the history of this country. People who have a religious or moral belief should not be forced to participate in an act they find abhorrent."